Listening to the dark-money political ads, one might conclude that former Gov. John Hickenlooper committed numerous serious ethical violations. He did not.
These complaints, most of which were dismissed, were politically driven to provide a “basis” for the false ads that are circulating now.
And now Sen. Cory Gardner is making these “ethical” issues the centerpiece of his rationale for reelection. Shame on him.
The trial process of the Colorado Independent Ethics Commission was miles away from any kind of trial that any of us would want applied to us. First, the commission created new and vague legal “standards” never applied to previous complaints. Second, there was no actual evidence to support the amounts of the penalties. Third, one of the “judges,” Commissioner Debra Johnson, never disclosed that she had a close personal and professional relationship with the attorney for the complainant. Johnson should have disqualified herself.
After months of litigation that cost tens of thousands of dollars, the commission rejected almost all of the claims made by the Public Trust Institute (“PTI”).
Ignoring the dissent of the chair of the commission, Elizabeth Krupa, an attorney, the majority concluded that Gov. Hickenlooper violated the gift ban twice — flying on a private plane to the commissioning of the USS Colorado in Groton, Conn., in 2018, an estimated value of $1,100 and a one-day rental of a vehicle, which the commission estimated to be $275.
The gift ban is a constitutional amendment passed in 2006, which prohibits any state elected official or employee from accepting a gift valued at more than $59 but does not apply to the costs of food at an event at which the public officer will speak and does not apply to reasonable expenses paid by a nonprofit for attendance at a convention or meeting if the official is representing the state of Colorado.
PTI is a political non-profit incorporated several days before the complaint was filed by former Colorado Speaker of the House Frank McNulty, a Republican who frequently was at odds with Gov. Hickenlooper.
Interestingly, the IRS does not list it as a 501(c) 3 and the I-990 forms which should identify its major funders are not available. The commission refused to order PTI to disclose this information.
The USS Colorado, commissioned on March 17, 2018, in Groton, Conn., is a nuclear-powered Navy attack submarine, which cost $2.6 billion and is named after the state of Colorado.
The governor was representing the state of Colorado when he flew to Connecticut. The Ethics Commission found that because the other four legislators who were invited to the commissioning of the USS Colorado were not invited to ride in the private plane, it made the governor’s ride an ethics violation.
This silly conclusion dressed up as a legal standard that is not written in the amendment and never before applied means that the governor could have accepted the plane ride and attended the event if only the governor had been invited to the commissioning and the four legislators had not been invited.
Then there would have been no ethics violation at all. How ridiculous is that?
As Krupa noted in her dissent, PTI presented no evidence that the governor was doing anything at the commissioning of the USS Colorado, other than representing the state. The commission still found a violation.
Krupa concluded that assessing a penalty for the acceptance of private airfare and a meal at the commissioning of the USS Colorado was inconsistent with past decisions of the commission that had found no violation for the attendance of Rep. Kim Ranson at the Western Conservative Conference, even though the Western Conservatives gave her a $400 gold-level pass that provided tickets to a concert, reserved seating, book signing, photo opportunities and a banquet.
Krupa found this difference in treatment a reversal of past decisions, with no explanation other than a belief by the majority that travel and meals felt “above and beyond.”
Commissioner Yeulin Willett, an attorney and former Republican legislator from Grand Junction, wrote he was relying on this “gut feeling” as to the voter’s intention in passing the amendment.
Relying on “gut feeling” for constitutional interpretation is not valid under any circumstances and would keep one off the short list of nominees to the Supreme Court. How hypocritical is that?
My old friend, Monroe McKay, chief judge of the 10th U.S. Circuit Court of Appeals (may he rest in peace) used to say that a horse biscuit is a horse biscuit and just because someone puts honey and butter on them, does not mean we should eat them. These complaints were horse biscuits.
Unfortunately, the commission majority swallowed a couple, but the voters should not. Sen. Gardner should publicly disavow these attacks and debate the important issues.
France Koncilja is a former president of the Colorado Bar Association and former chair of the Colorado Supreme Court Grievance Committee. She recently finished the term on the Colorado Public Utilities Commission to which Gov. Hickenlooper appointed her and is again practicing law.
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